STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. )

) MAGELLAN EDUCATIONAL SERVICES, ) INC., )

)

Respondent. )

Case No. 05-2074

)

RECOMMENDED ORDER

A final hearing was conducted in this case on September 1, 2005, by video teleconference at sites located in Tallahassee, Florida, and Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondent: Thomas Blitch, pro se

Owner/Operator

Magellan Educational Services, Inc. Post Office Box 55109

Jacksonville, Florida 32255-1509

STATEMENT OF THE ISSUES

The issues are as follows: (1) whether Respondent violated Section 402.305(2), Florida Statutes (2005), and Florida Administrative Code Rule 65C-22.003(2) by failing to show that two staff members had enrolled in the introductory child care course within 90 days of employment; and if so, (2) what penalty

should be imposed.

PRELIMINARY STATEMENT

On or about April 8, 2005, Petitioner Department of Children and Family Services (Petitioner) issued an Administrative Complaint against Respondent Magellan Educational Services, Inc. (Respondent). The complaint alleged that Respondent did not have documentation to show that two staff members had enrolled in the introductory child care course within 90 days of employment.

On May 13, 2005, Respondent requested an administrative hearing to contest the allegations in the complaint. On June 8, 2005, Petitioner referred Respondent's request to the Division of Administrative Hearings.

On June 28, 2005, the undersigned issued a Notice of Hearing by Video Teleconference. The notice scheduled the video conference for August 22, 2005.

On July 6, 2005, the undersigned issued an Amended Notice of Hearing by Video Teleconference. The amended notice scheduled the hearing for September 1, 2005.

On September 1, 2005, Respondent filed a Notice of Filing Proposed Exhibits.

During the hearing, Petitioner presented the testimony of one witness. Petitioner offered five exhibits that were accepted into the record as evidence.

Respondent presented the testimony of two witnesses.

Respondent offered two exhibits that were accepted into the record as evidence.

At the conclusion of the hearing, the parties indicated that they did not intend to file a copy of the hearing transcript. Accordingly, the undersigned advised the parties that they had an opportunity to file proposed recommended orders on or before September 12, 2005. The undersigned also requested Petitioner's counsel to file copies of hearing exhibits not previously filed as proposed exhibits.

On September 12, 2005, Petitioner filed a Notice of Filing Exhibits and Requesting Transcript of Final Hearing and Motion to Extend Time to File Proposed Recommended Order. The motion is hereby denied.

On September 12, 2005, Respondent filed a Proposed Recommended Order. As of the date of issuance of this

Recommended Order, Petitioner had not filed proposed findings of fact and conclusions of law.

All citations hereinafter shall be to Florida Statutes (2005) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the agency charged with the responsibility of enforcing Sections 402.301 through 402.319, Florida Statutes.

2. At all times relevant here, Respondent has been licensed to operate a child care facility located at 10550 Deerwood Park Boulevard, Jacksonville, Florida (the facility.) Respondent's current license to operate the facility is effective May 6, 2005, through May 5, 2006.

3. On April 22, 2003, Petitioner performed a renewal-of- licensure inspection at the facility. The inspection revealed that Respondent was not in compliance with the requirement that all staff members enroll in the introductory course in child care within 90 days of employment. The citation for non- compliance involved three of Respondent's staff members, including R.A., M.P., and G.S.

4. On August 20, 2003, Petitioner performed a routine inspection at Respondent's facility. The inspection revealed that Respondent was in compliance with the requirement that all

   staff members enroll in the introductory course in child care within 90 days of employment.

5. During the hearing, Respondent presented undocumented testimony that it was in compliance with staff training requirements during an inspection on January 6, 2004.

6. On April 20, 2004, Petitioner performed a renewal-of- licensure inspection at the facility. Once again the inspection revealed that Respondent failed to have documentation to show enrollment in the introductory course in child care for all staff employed for at least 90 days.

7. On May 4, 2004, Petitioner performed a re-inspection of the facility. The inspection revealed that Respondent continued to be out of compliance with the requirement for staff members to enroll in the introductory child care course within 90 days of employment. The relevant portion of the May 4, 2004, re- inspection checklist contains the following comment by Petitioner's inspector:

   CA [corrective action] states the cited employees have not completed the required 40-hour training nor have they enrolled. The facility is working toward getting them enrolled. Staff worker G.S. was previously cited 04/22/03 for not enrolling in the required Observation and Screening module. CA received in this office on June 09, 2003, states G.S. registered 04/07/2003.

   
   

8. On May 4, 2004, Petitioner issued a Notice of Intent to Impose Administrative Action against Respondent. The notice

   states that Petitioner intended to take such action if Respondent did not take corrective action within a certain time frame to ensure that all staff members enrolled in required training classes in a timely manner or if the same deficiencies continued.

9. During the hearing, Respondent presented undocumented testimony that it was in compliance with staff training requirements during an inspection on August 18, 2004.

10. On March 28, 2005, Petitioner performed a renewal-of- licensure inspection at the facility. During the inspection, Petitioner determined that Respondent did not have documentation to show enrollment in the introductory course in child care for two staff members, who had been employed for at least 90 days.

11. Respondent hired I.N. on October 18, 2004. At the time of the March 28, 2005, inspection, I.N. had been working at the facility for approximately five months without enrolling in the appropriate training classes.

12. Respondent hired Y.W. on November 29, 2004. At the time of the March 28, 2005, inspection, Y.W. had been working at the facility for approximately four months without enrolling in the appropriate training classes.

13. Following the March 28, 2005, inspection, Petitioner required Respondent to provide documentation showing that I.N. and Y.W. were enrolled in the appropriate training classes.

    Respondent had until April 7, 2005, to provide Petitioner with such verification.

14. On or about April 7, 2005, Respondent provided Petitioner with a Corrective Action Statement. Respondent also enclosed verification of I.N. and Y.W.'s compliance with training requirements.

15. Petitioner's April 8, 2005, re-inspection of the facility confirmed that the two staff members were enrolled to begin the introductory child care training course. Accordingly, Respondent was in compliance with staff training requirements.

16. On August 15, 2005, Petitioner performed a routine inspection of the facility. Respondent was in compliance with staff training requirements at that time.

17. As of August 31, 2005, I.N. had completed the 40-hour introductory child care course.

18. At all times material here, Respondent was aware that

    
    

    I.N. and Y.W. were not enrolled in the appropriate training classes. On more than one occasion, Respondent's administrative staff counseled with I.N. and Y.W. regarding the need for I.N. and Y.W. to enroll in the introductory child care course within

    90 days of employment.

    
    

19. At some point during the first 90 days of employment, Respondent sent I.N. and Y.W. a letter reminding them of the need to enroll in the introductory child care course. The

    letter advised I.N. and Y.W. that they might be subject to suspension from work if they did not meet the training requirements. However, Respondent never suspended I.N. or Y.W. because Respondent's administrators believed that the staff members were having difficulty registering for the course at Florida Community College Jacksonville (FCCJ) due to the unavailability of classes. There is no evidence to show the specific efforts that I.N. and Y.W. made to register for class.

20. Respondent routinely advises its new staff members that they can register over the Internet for the introductory child care course with FCCJ. Respondent occasionally gives new staff members an opportunity to leave work during school hours so that they can go to FCCJ to register in person. In either event, efforts by new staff members to enroll in required training classes are sometimes unsuccessful due to the unavailability of classes. If timely enrollment in required classes is not possible in Jacksonville/Duval County, Florida, Respondent advises its new staff members of the opportunity to register for classes in adjacent counties. Neither Petitioner nor Respondent requires new teachers to verify their unsuccessful efforts to register for classes.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this

    case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

22. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Section 402.305(2), Florida Statutes, and Florida Administrative Code Rule 65C- 22.003(2), by failing to ensure that staff members enrolled in the introductory child care course within 90 days of employment. See Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932, 935- 936 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-295 (Fla. 1987)).

23. Section 402.305(2)(d), Florida Statutes, states as follows in pertinent part:

    (2) PERSONNEL.--Minimum standard for child care personnel shall include minimum requirements as to:

    
    

    * * *

    
    

    (d) Minimum training requirements for child care personnel.

    1. Such minimum standards for training shall ensure that all child care personnel take an approved 40-clock-hour introductory course in child care, which course covers at least the following topic areas:

       1. State and local rules and regulations which govern child care.

       2. Health, safety, and nutrition.

       3. Identifying and reporting child abuse and neglect.

       4. Child development, including typical and atypical language, cognitive,

          motor, social, and self-help skills development.

       5. Observation of developmental behaviors, including using a checklist or other similar observation tools and techniques to determine the child's developmental age level.

       6. Specialized areas, including computer technology for professional and classroom use and early literacy and language development of children from birth to 5 years of age, as determined by the department, for owner-operators and child care personnel of a child care facility.

    
    

    Within 90 days after employment, child care personnel shall begin training to meet the training requirements. . . .

24. The 40 hour Introductory Child Care Training requirement is divided into two parts: (a) Part I comprises 30

    hours of training, consisting of specified training modules; and

    
    

    (b) Part II comprises 10 hours of training, consisting of a selection from specialized training modules. See Fla. Admin. Code R. 65C-22.003(2)

25. In this case, Respondent does not deny that it was out of compliance with the requirements of Section 402.305(2)(d), Florida Statutes, during inspections on April 22, 2003, April 20, 2004, May 4, 2004, and March 28, 2005. Respondent is not excused from complying with training requirements even if some new staff members have experienced difficulty registering for training courses.

26. Section 402.310(1), Florida Statutes, states as follows in relevant part:

    (1)(a) The department or local licensing agency may deny, suspend, or revoke a license or impose an administrative fine not to exceed $100 per violation, per day, for the violation of any provision of ss. 402.301-402.319 or rules adopted thereunder . . . .

    (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

    1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 402.301-402.319 have been violated.

    2. Actions taken by the licensee to correct the violation or to remedy complaints.

    3. Any previous violations of the licensee.

    
    

27. Petitioner's policies and procedures regarding enforcement are set forth in Book 1/Enforcement Section of CF Pamphlet 175-2, as revised on March 1, 2004. The pamphlet states as follows in pertinent part:

    Negative Licensing Enforcement

    
    

    * * *

    
    

    C. Administrative Fines

    
    

    When corrective action is not completed within specified time frame, the next step is to proceed with the administrative fine.

    It is important to use one of the enforcement actions authorized by law to encourage compliance with child care standards. In addition, continued non- compliance with the standards places the department in the position of having to take more punitive measures such as the issuing of provisional licenses, denial of licenses, suspensions and revocations.

    
    

    The proper use of administrative fines should discourage continued non-compliance and reduce the number of more serious enforcement actions against a facility or home. Refer to 402.310, F.S., 402.313(1)(b), F.S., and 402.3131(1)(a), F.S.

    
    

    Classification of Violations

    
    

    The administrative fine is generally used only under two conditions:

    
    

    When a child care facility or home is in violation of a standard, which may or has threatened the health and safety of the children, also referred to as a Class I violation, or

    
    

    When a child care facility or home fails to complete corrective action within specified time frames for a violation cited during an on-site inspection and determined to be a Class II, III, or other.

    
    

    The following classification of violations is a guideline to assist in determining the standardized severity of a violation and the amount of a fine. In addition, when determining the amount of the fine, previous violations and actions taken by the owner or operator to correct the violation should be taken into consideration . . . .

    
    

    . . . The ranges of fines listed below are provided for child care facilities.

    * * *

    
    

    Class III Violations: The least serious in nature include those conditions or occurrences related to the operation and maintenance of the facility or home other than Class I or Class II violations. Class III violations in child care facilities shall be penalized by a fine not less than

    $25 nor more than $50 per day for each violation. . . . The fine will be levied for everyday the violation occurred, if not corrected within the time frame specified by the department, or for repeated occurrences of this violation. The amount of the fine will be based on the nature of the violation, repetition of the violation and actions of the facility or home to correct the violation.

    
    

    Class III Examples:

    
    

    Training violations

    
    

    * * *

    
    

28. Within 10 days of the March 28, 2005, inspection, Respondent corrected its failure to ensure that I.N. and Y.W. registered for the introductory child care course. However, Respondent repeatedly has failed to show compliance with the requirement that new staff members enroll in the introductory child care course within 90 days of employment. Respondent's prior violations are especially significant in this case because Respondent knew I.N. and Y.W. had not registered for the required training in a timely manner, yet allowed them to continue working.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a Final Order imposing an administrative fine in the amount of $50 on Respondent.

DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2005.

COPIES FURNISHED:

Robin Whipple-Hunter, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Thomas Blitch Owner/Operator

Magellan Educational Services, Inc. Post Office Box 55109 Jacksonville, Florida 32255-1509

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tamayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 05-002074

Orders for Case No: 05-002074